LOWELL T. WARNER et al., Appellants,
KYLE E. KAIN et al., Respondents.
Calendar Date: April 23, 2018
Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of
counsel), for appellants.
Office of J. William Savage, East Syracuse (Karen Veronica
DeFio of counsel), for respondents.
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and
MEMORANDUM AND ORDER
from an order of the Supreme Court (Richards, J.), entered
September 26, 2017 in St. Lawrence County, which denied
plaintiffs' motion for partial summary judgment.
commenced this action seeking to recover for injuries
sustained by plaintiff Lowell T. Warner in a chain-reaction
motor vehicle accident. Warner was operating a Chevrolet
pickup truck that was stopped at a traffic signal when it was
struck from behind by a Jeep Liberty that was being operated
by a nonparty who was stopped behind him at the traffic
signal. The Jeep Liberty was, in turn, struck from behind by
a vehicle being operated by defendant Kyle E. Kain. Supreme
Court denied plaintiffs' motion for partial summary
judgment on the issue of liability, and plaintiffs appeal.
a driver of a moving vehicle rear-ends a stopped vehicle, a
prima facie case of negligence exists that must be rebutted
by an adequate, nonnegligent explanation for the
collision" (Martin v LaValley, 144 A.D.3d 1474,
1477  [internal quotation marks and citations
omitted]). "A mechanical failure or sudden and abrupt
stop of the vehicle in front can constitute a sufficient
explanation to overcome the inference of negligence"
(Johnson v First Student, Inc., 54 A.D.3d 492, 493
 [citation omitted]). Further, "where the driver
of the offending vehicle lays the blame for the accident on
brake failure, it is incumbent upon that party to show that
the brake problem was unanticipated and that reasonable care
was exercised to keep the brakes in good working order"
(Hubert v Tripaldi, 307 A.D.2d 692, 694 
[internal quotation marks, brackets, ellipsis and citation
met their initial burden of establishing prima facie
entitlement to summary judgment based on the undisputed fact
that Kain rear-ended the Jeep Liberty, causing it to rear-end
Warner's vehicle, thereby shifting the burden to
defendants to demonstrate a nonnegligent explanation for the
collision (see Bell v Brown, 152 A.D.3d 1114,
1114-1115 ). In opposition, defendants relied entirely
on Kain's deposition testimony as a basis for asserting
that there were two nonnegligent explanations for the
collision - that the brakes on his vehicle failed and that
both vehicles traveling in front of him stopped abruptly
. Kain testified that when he
"initially pressed the brakes, they went halfway to the
floor, " and that "the brakes did not respond as
quickly as they normally would." When application of the
brakes slowed his vehicle's speed insignificantly, if at
all, he "ended up pulling the emergency brake."
He further testified that when the light turned red,
Warner's vehicle "stopped abruptly and the Jeep
Liberty had to stop abruptly behind it."
we conclude that Supreme Court properly considered the
defense of brake failure, notwithstanding defendants'
failure to plead it as an affirmative defense . The claim
that an accident was unavoidable due to brake failure is an
affirmative defense (see CPLR 3101 [b]; Suitor v
Boivin, 219 A.D.2d 799, 800 ). However,
"[e]ven an unpleaded defense may be raised on a summary
judgment motion, as long as it would not be likely to
surprise the adverse party or raise issues of fact not
previously apparent" (Brodeur v Hayes, 305
A.D.2d 754, 755 ). Accordingly, a nonmovant may invoke
a waived defense to defeat a motion for summary judgment if
the movant has the opportunity to respond (see Green
Harbour Homeowners Assn., Inc. v Ermiger, 128 A.D.3d
1142, 1144 ). Kain testified at his deposition that the
brakes in his vehicle failed, and plaintiffs addressed that
issue in their moving papers and again in their reply.
further conclude that defendants met their burden to provide
a nonnegligent explanation for the accident. Kain testified
that the brakes did not operate normally when he applied them
and, further, that the application of the brakes did not
appreciably slow the speed of the vehicle as he approached
the vehicles that were stopped at the traffic signal.
Further, he testified that his vehicle was relatively new and
was in good working order, and that the only mechanical
problems he had experienced prior to the accident were
unrelated to the brakes. He further testified that the brakes
operated properly prior to the accident, the inspection was
current and the malfunction caused him to apply his emergency
brake. When viewed in the light most favorable to defendants,
as nonmovants, Kain's testimony is sufficient to meet
their burden of establishing a triable question of fact as to
whether the brakes failed (see Hubert v Tripaldi,
307 A.D.2d at 694).
also testified that Warner's vehicle and the Jeep Liberty
abruptly stopped directly in front of his vehicle. He
specifically stated that Warner's vehicle approached the
intersection without slowing, as if it was going to proceed,
and that it stopped immediately when the light turned red,
thereby forcing the Jeep Liberty to also stop abruptly. He
further testified that he was traveling at or below the speed
limit and that he applied his brakes immediately upon seeing
that both vehicles had stopped abruptly in his path. When
viewed in the light most favorable to defendants, Kain's
testimony establishes the existence of a triable issue of
fact as to whether there was a sudden and abrupt stop
(see Bell v Brown, 152 A.D.3d at 1115; Martin v
LaValley, 144 A.D.3d at 1477-1478). Accordingly, the
Supreme Court properly denied plaintiffs' motion for
partial summary judgment.
McCarthy, J.P., Egan Jr., Aarons and ...